Illinois Law Reviewhttps://illinoislawreview.org
The Illinois Law Review is an academic publication published by the students of the University of Illinois College of Law.Wed, 30 Nov 2016 21:09:16 +0000en-UShourly1https://wordpress.org/?v=4.6.1UniversityOfIllinoisLawReviewhttps://feedburner.google.comLaw Review Online Launches New Bloghttp://feedproxy.google.com/~r/UniversityOfIllinoisLawReview/~3/FIaFIG7vpiI/
Wed, 30 Nov 2016 21:00:02 +0000https://illinoislawreview.org/?p=4555View Article]]>The Illinois Law Review Online is excited to announce its new blog section. In an effort to cover the current events of the legal industry, ILR Online’s blog section will publish shorter, timely content exploring current legal issues and news. Our first post, Forum Shopping in the Golden State, is written by Julia Zousmer, an associate practicing product-liability and mass-tort litigation at Sidley Austin. The post explores the state of forum shopping in California following the California Supreme Court’s 2016 decision in Bristol-Myers Squibb Co. v. Superior Court (Anderson).

ILR Online invites students, professors, and practitioners to submit pieces for publication on the blog. Blog posts typically run 1,000 to 3,000 words. To submit a blog post for publication consideration, email law-reviewonline@illinois.edu.

]]>https://illinoislawreview.org/news/law-review-online-launches-new-blog/Forum Shopping in the Golden Statehttp://feedproxy.google.com/~r/UniversityOfIllinoisLawReview/~3/q1k9R5Gjga8/
Tue, 29 Nov 2016 21:46:02 +0000https://illinoislawreview.org/?p=4537In pharmaceutical, medical device, and other mass tort litigation, plaintiffs’ attorneys commonly collect cases from plaintiffs across the country and file them together in a single preferred jurisdiction. In pharmaceutical and medical device litigation, that jurisdiction is frequently California state court. The fact that California is a frequent home to lawsuits from out-of-state plaintiffs whose claims have no meaningful connection to the state is a strong indication that plaintiffs’ attorneys perceive a litigation advantage there. This practice of filing suit in the forum perceived as most favorable—even when the claims have little or no connection to that forum—is commonly known as “forum shopping.”

Two years ago, when the United States Supreme Court decided Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the eventual demise of forum shopping seemed likely, if not inevitable. In Daimler, the Supreme Court held that a corporate defendant could only be subject to general jurisdiction in a state where its affiliations “are so continuous and systematic as to render [it] essentially at home in the forum State.” Id. at 761 (internal citations and quotation marks omitted). Daimler rejected as “unacceptably grasping” the idea that a corporate defendant could be subject to general jurisdiction in every state in which it “engages in a substantial, continuous, and systematic course of business.” Id. at 760–62. In other words, under Daimler, a corporate defendant that sells a product nationwide generally can only be subject to general jurisdiction in its place of incorporation and principal place of business. Id. at 760. Thus, because Daimler rejected the framework of general jurisdiction that made it easy for plaintiffs in pharmaceutical and medical device litigation to forum shop, change seemed on the horizon.

In August 2016, however, in a 4-3 decision that effectively erased the bounds of personal jurisdiction set out in Daimler, the California Supreme Court held that California courts could exercise personal jurisdiction over claims brought by non-California residents against a corporate defendant that was neither headquartered nor incorporated in California. Bristol-Myers Squibb Co. v. Superior Court (Anderson), 377 P.3d 874 (Cal. 2016). In Anderson, the non-California (“non-resident”) defendant was Bristol-Myers Squibb (“BMS”), a global pharmaceutical company incorporated in Delaware and headquartered in New York, and the BMS product at issue was Plavix, a prescription drug used to help prevent strokes, heart attacks, and other cardiovascular problems by inhibiting blood clots. Plavix was not researched, developed, manufactured or designed in California; nor were its marketing, packaging, and regulatory materials prepared in California. Id. at 879. Thus, when eight separate complaints were filed in San Francisco Superior Court by or on behalf of 678 plaintiffs—86 of whom were California residents and 592 of whom were residents of other states—BMS moved to quash service of the summons for the 592 non-resident plaintiffs based on lack of personal jurisdiction. Id. at 878. The trial court denied the motion, and BMS petitioned the Court of Appeal for a writ of mandate. Id. at 879. The Court of Appeal denied the writ and BMS appealed to the California Supreme Court. Id.

The California Supreme Court affirmed the Court of Appeal. The Court applied Daimler to hold that California’s courts lacked general jurisdiction over BMS because BMS was neither incorporated nor had a principal place of business in California and therefore could not be considered “at home in [the] state for purposes of general jurisdiction” (377 P.3d at 883), but concluded that California courts could nonetheless exercise specific jurisdiction over BMS on claims of non-California residents alleging injuries that neither occurred nor were treated in California. Id. at 894. In so ruling, the California Supreme Court appeared to apply a “sliding scale” approach to specific jurisdiction; which does not require a direct relationship between a plaintiff’s claim and the defendant’s forum contacts, nor does it require that the defendant’s forum contacts be directed toward the plaintiff. Thus, using the “sliding scale” approach, the Court reasoned that because BMS purportedly had 5 offices in California with around 400 employees, including 250 sales employees, marketed and sold Plavix to residents of California, distributed Plavix using a California distributor (who was also a co-defendant), and conducted research on other products in its California research facilities, its contacts with California were sufficiently wide ranging to justify the assertion of specific jurisdiction over the non-resident plaintiffs’ Plavix claims. Id. at 886–87. According to the California Supreme Court, because BMS had sold nearly one billion dollars of Plavix to Californians and the claims of California-resident plaintiffs were based on the same alleged wrongs as the claims of the non-resident plaintiffs, the sales of Plavix in California were “substantially connected” to the non-resident plaintiffs’ claims to support the exercise of specific jurisdiction over the non-resident plaintiff claims. Id. at 886–889.

Under the reasoning of Anderson, plaintiffs are bound to argue that any plaintiff can sue any corporate defendant in California so long as the defendant’s product is sold nationwide and an in-state resident is also a plaintiff. This is particularly troubling in the context of mass tort litigation because it suggests that plaintiffs can use the procedural tool of joinder to forum shop for the California venues they perceive as most favorable. It also allows plaintiffs to join with non-resident defendants to defeat diversity jurisdiction and avoid removal.

BMS is seeking review of the Anderson decision before the United States Supreme Court. Until the Supreme Court clarifies the standard for specific jurisdiction, however, we will likely continue to see a disproportionate number of out-of-state plaintiffs filing cases in the Golden State.

]]>https://illinoislawreview.org/blog/forum-shopping-in-the-golden-state/Sustainable Cybersecurityhttp://feedproxy.google.com/~r/UniversityOfIllinoisLawReview/~3/_dkth0APo1M/
Fri, 28 Oct 2016 19:06:55 +0000https://illinoislawreview.org/?p=4497View Article]]>According to Frank Montoya, the U.S. National Counterintelligence Chief, ‘‘[w]e’re an information-based society now. Information is everything. That makes . . . company executives, the front line——not the support mechanism, the front line——in [determining] what comes.’’1 Chief Montoya’s remarks underscore the central role played by the private sector in ongoing efforts aimed at enhancing cybersecurity, much like the increasingly vital role firms are playing in fostering sustainability. For example, according to Accenture surveys, the number of managers who consider sustainability to be critical to the future success of their organizations jumped from fifty to more than eighty percent from 2007 to 2010, fueling interest in a range of new sustainability initiatives.2 Similar trends may be seen with regard to cybersecurity,3 which is already prompting consideration of novel cybersecurity strategies aimed at translating this increased interest into action. One such avenue is corporate social responsibility (‘‘CSR’’). This Article argues that organizations should treat cybersecurity as a matter of CSR to safeguard their customers and the public, such as by securing critical infrastructure. It is in corporations’ own long-term self-interest (as well as that of national security) to take such a wider view of private-sector risk management practices so as to encompass less traditional factors akin to what companies have done with respect to sustainability. To that end, the analogy of sustainable development will be developed, focusing on the applicability of certain aspects of the green movement, such as integrated reporting and the common heritage of mankind concept, to help foster cyber peace.
]]>https://illinoislawreview.org/print/volume-2016-issue-5/sustainable-cybersecurity-applying-lessons-from-the-green-movement-to-managing-cyber-attacks/State Judicial Sovereigntyhttp://feedproxy.google.com/~r/UniversityOfIllinoisLawReview/~3/GbgJYHlghJ8/
Fri, 28 Oct 2016 19:04:35 +0000https://illinoislawreview.org/?p=4494View Article]]>In our “dual sovereignty” with a dual judiciary, it is the received wisdom that Congress has plenary power over the state courts through concurrent, mandatory, and exclusive jurisdiction. Congress, the argument goes, can allow, require, or forbid state courts from hearing federal causes of action. The Supreme Court, however, has sketched out an important but underappreciated limiting principle of this Congressional power, grounded in the separation of powers and state autonomy. I refer to this doctrine as state judicial sovereignty. Every effort by Congress to control the jurisdiction of the state courts must respect the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, causes of action. Concurrent, mandatory, and exclusive jurisdiction statutes can exist only within these bounds of state judicial sovereignty.
This Article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’ efforts to use or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents.
First, state judge sovereignty refers to the constitutional obligations of state judges to hear federal causes of action, so long as the state vested them with adequate jurisdiction. Second, state jurisdictional sovereignty provides states with the autonomy to vest their courts with jurisdiction, but prohibits them from discriminating against federal claims by withdrawing pre-existing jurisdiction. Third, state judge sovereignty places a limit on the federal government’s power to control the state courts, based on the Supreme Court’s anticommandeering and necessary-and-proper jurisprudence following NFIB v. Sebelius.
The bounds of federal authority over how state courts conduct their business have remained largely undefined for over 200 years. This Article aims to identify these boundaries and demonstrate the limits of Congress’ powers over state courts.
]]>https://illinoislawreview.org/print/volume-2016-issue-5/state-judicial-sovereignty/When Marching to the Beat of the Drum Means Beating the Drummerhttp://feedproxy.google.com/~r/UniversityOfIllinoisLawReview/~3/g0CEg9Ep1Ys/
Fri, 28 Oct 2016 19:01:43 +0000https://illinoislawreview.org/?p=4491View Article]]>The prevalence of hazing in universities is not a novel issue. For both fraternities and sororities, it has become a key part of the initiation process for new members. Yet, what happens when hazing occurs in other university contexts? This has increasingly become a concern as the prevalence of hazing in university marching bands continues to make itself known. Traditional laws regulating and punishing hazing in the university setting typically focus on the nexus of the hazing to a student’s direct involvement in the university sponsored activity. Many of those laws only protect against physical injuries that result from the hazing conduct in initiation-type settings. This leaves many students who are subject to hazing without remedy when the conduct occurs following their initiation into an organization, or when it constitutes emotional or mental trauma rather than physical. This Note seeks to evaluate the effectiveness of existing state antihazing statutes and their application in the context of university marching bands. It will look at the historical approaches the law takes in its attempts to regulate hazing, and consider the core theories of recovery that plaintiffs can pursue against universities to hold them liable. This Note will recommend that states remove exclusions for entire groups, that hazing should encompass acts that occur at any time relating to membership in an organization, and that hazing that results in mental or emotional trauma should be treated the same as that which produces physical trauma. Finally, courts need to establish a standard for university liability for hazing that occurs in university marching bands by modifying the Third Circuit’s three-factor approach in Kleinknecht v. Gettysburg College to adequately protect all marching band members from reasonably foreseeable harms resulting from hazing.
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